Bill Text: NY A04721 | 2013-2014 | General Assembly | Introduced

---

Bill Title: Provides that, as a general rule, any statement made during a custodial interrogation is inadmissible unless such interrogation was electronically recorded; provides exceptions as to when a statement will be admissible even if the custodial interrogation was not recorded.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2014-01-08 - referred to codes [A04721 Detail]

Download: New_York-2013-A04721-Introduced.html

---

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4721
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                   February 8, 2013
                                      ___________
       Introduced  by  M.  of  A.  LENTOL  --  Multi-Sponsored  by  -- M. of A.
         PEOPLES-STOKES -- read once and referred to the Committee on Codes
       AN ACT to amend the criminal procedure law, in relation to the electron-
         ic recording of interrogations
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  The  criminal  procedure  law  is amended by adding a new
    2  section 60.47 to read as follows:
    3  S 60.47 RULES OF EVIDENCE; ELECTRONIC RECORDING OF STATEMENTS OF DEFEND-
    4             ANTS.
    5    1. DEFINITIONS. AS USED IN THIS SECTION:
    6    (A) "ELECTRONIC RECORDING" MEANS A  CONTEMPORANEOUS  VIDEO  AND  AUDIO
    7  RECORDING,  OR WHERE VIDEO RECORDING IS IMPRACTICABLE, A CONTEMPORANEOUS
    8  AUDIO RECORDING.
    9    (B) "CUSTODIAL INTERROGATION" MEANS ANY QUESTIONING WHICH IS CONDUCTED
   10  IN A PLACE OF DETENTION OR DURING  WHICH  A  REASONABLE  PERSON  IN  THE
   11  SUBJECT'S POSITION WOULD CONSIDER HIMSELF OR HERSELF TO BE IN CUSTODY.
   12    (C)  "PLACE OF DETENTION" MEANS A POLICE STATION, CORRECTIONAL FACILI-
   13  TY, HOLDING  FACILITY  FOR  PRISONERS,  PROSECUTOR'S  OFFICE,  OR  OTHER
   14  GOVERNMENT  FACILITY  WHERE  PERSONS ARE HELD IN DETENTION IN CONNECTION
   15  WITH CRIMINAL CHARGES WHICH HAVE BEEN OR MAY BE FILED AGAINST THEM.
   16    2. DURING THE PROSECUTION OF A  FELONY,  AN  ORAL,  WRITTEN,  OR  SIGN
   17  LANGUAGE  STATEMENT OF A DEFENDANT MADE DURING A CUSTODIAL INTERROGATION
   18  SHALL BE PRESUMED INADMISSIBLE AS EVIDENCE  AGAINST  A  DEFENDANT  IN  A
   19  CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING IS MADE OF THE CUSTO-
   20  DIAL  INTERROGATION  IN  ITS  ENTIRETY, INCLUDING ANY ADMINISTRATION AND
   21  WAIVER, OR INVOCATION OF RIGHTS, THE RECORDING IS SUBSTANTIALLY ACCURATE
   22  AND NOT INTENTIONALLY ALTERED, AND ALL INDIVIDUALS WHO SPEAK DURING  THE
   23  INTERROGATION ARE IDENTIFIED BY NAME ON THE RECORDING.
   24    3. IF THE COURT FINDS THAT THE DEFENDANT WAS SUBJECTED  TO A CUSTODIAL
   25  INTERROGATION  IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, THEN ANY
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02707-01-3
       A. 4721                             2
    1  STATEMENTS MADE BY THE DEFENDANT FOLLOWING THAT CUSTODIAL INTERROGATION,
    2  EVEN IF OTHERWISE IN COMPLIANCE WITH THIS  SECTION,  ARE  ALSO  PRESUMED
    3  INADMISSIBLE.
    4    4. THE PEOPLE MAY REBUT A PRESUMPTION OF INADMISSIBILITY THROUGH CLEAR
    5  AND CONVINCING EVIDENCE THAT THE STATEMENT WAS BOTH VOLUNTARY AND IF THE
    6  STATEMENT  IS  INCULPATORY,  WAS NOT MADE UNDER CIRCUMSTANCES CREATING A
    7  SUBSTANTIAL RISK THAT THE DEFENDANT MIGHT FALSELY INCRIMINATE HIMSELF OR
    8  HERSELF, AND:
    9    (A) EXIGENT CIRCUMSTANCES EXISTED  NECESSITATING  INTERROGATION  AT  A
   10  PLACE  IN A LOCATION OTHER THAN A POLICE STATION, CORRECTIONAL FACILITY,
   11  HOLDING FACILITY FOR PRISONERS, PROSECUTOR'S OFFICE, OR OTHER GOVERNMENT
   12  FACILITY WHERE PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL
   13  CHARGES WHICH HAVE BEEN OR MAY BE FILED  AGAINST  THEM,  AND  WHERE  THE
   14  REQUISITE RECORDING EQUIPMENT WAS NOT READILY AVAILABLE;
   15    (B)  THE  ACCUSED  REFUSED  TO HAVE HIS OR HER INTERROGATION ELECTRON-
   16  ICALLY RECORDED, AND THE REFUSAL ITSELF WAS ELECTRONICALLY RECORDED; OR
   17    (C) THE FAILURE TO ELECTRONICALLY RECORD AN ENTIRE  INTERROGATION  WAS
   18  THE  RESULT OF EQUIPMENT FAILURE AND OBTAINING REPLACEMENT EQUIPMENT WAS
   19  NOT FEASIBLE.
   20    5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS TWO, THREE AND  FOUR
   21  OF  THIS  SECTION, THE COURT MAY ADMIT A STATEMENT IF IT BELIEVES, BASED
   22  ON A SHOWING OF GOOD CAUSE BY THE PEOPLE, THAT SUPPRESSION OF THE STATE-
   23  MENT IS TOO HARSH A REMEDY; THE COURT MUST THEN INSTRUCT THE  JURY  THAT
   24  IT  SHOULD CONSIDER THE FAILURE TO MAKE A RECORDING AS A FACT ADVERSE TO
   25  THE PEOPLE ON ANY ISSUE OF VOLUNTARINESS, OF THE CONTENT OF  THE  STATE-
   26  MENT, AND OF WHETHER THE STATEMENT WAS MADE.
   27    6. NOTHING IN THIS SECTION PRECLUDES THE ADMISSION OF:
   28    (A) A STATEMENT MADE BY THE ACCUSED IN OPEN COURT AT HIS OR HER TRIAL,
   29  BEFORE GRAND JURY, OR AT A PRELIMINARY HEARING;
   30    (B)  A  SPONTANEOUS STATEMENT THAT IS NOT MADE IN RESPONSE TO INTERRO-
   31  GATION;
   32    (C) A STATEMENT MADE DURING QUESTIONING THAT IS ROUTINELY ASKED DURING
   33  THE PROCESSING OF THE ARREST OF THE SUSPECT;
   34    (D)  A  STATEMENT  MADE  DURING  A  CUSTODIAL  INTERROGATION  THAT  IS
   35  CONDUCTED OUT-OF-STATE;
   36    (E)  A  STATEMENT  OBTAINED  BY A FEDERAL LAW ENFORCEMENT OFFICER IN A
   37  FEDERAL PLACE OF DETENTION;
   38    (F) A STATEMENT GIVEN AT A TIME WHEN  THE  INTERROGATORS  ARE  UNAWARE
   39  THAT A FELONY HAS IN FACT OCCURRED; OR
   40    (G)  A  STATEMENT,  OTHERWISE INADMISSIBLE UNDER THIS SECTION, THAT IS
   41  USED ONLY FOR IMPEACHMENT AND NOT AS SUBSTANTIVE EVIDENCE.
   42    7. THE PEOPLE SHALL NOT DESTROY OR ALTER ANY ELECTRONIC RECORDING MADE
   43  OF A CUSTODIAL INTERROGATION FOR A PERIOD OF TEN  YEARS,  MEASURED  FROM
   44  THE DATE OF JUDGMENT.
   45    S 2. Section 710.20 of the criminal procedure law is amended by adding
   46  a new subdivision 8 to read as follows:
   47    8.  CONSISTS OF A RECORD OR POTENTIAL TESTIMONY RECITING OR DESCRIBING
   48  A STATEMENT OBTAINED IN VIOLATION OF SECTION 60.47 OF THIS CHAPTER.
   49    S 3. Subdivision 1 of section 710.30 of the criminal procedure law, as
   50  separately amended by chapters 8 and 194 of the laws of 1976, is amended
   51  to read as follows:
   52    1.  Whenever the people intend to offer at a trial (a) evidence  of  a
   53  statement  made  by  a defendant to a public servant, which statement if
   54  involuntarily made would render the evidence thereof  suppressible  upon
   55  motion  pursuant to subdivision three of section 710.20 OF THIS ARTICLE,
   56  or (b) testimony regarding an observation of the defendant either at the
       A. 4721                             3
    1  time or place of the commission of the offense or upon some other  occa-
    2  sion  relevant  to the case, to be given by a witness who has previously
    3  identified him as such, they must serve upon the defendant a  notice  of
    4  such  intention,  specifying the evidence intended to be offered AND, IN
    5  THE CASE OF A STATEMENT, WHETHER IT WAS ELECTRONICALLY RECORDED.
    6    S 4. This act shall take effect on the ninetieth day  after  it  shall
    7  have  become a law, and shall apply to any custodial interrogations that
    8  take place on and after such date.